McFarland v. Reynolds

• Citation: 513 S.W.2d 620
• Decision Date: 30 August 1974
• Docket Number: No. 882,882
• Parties: Jeanne McFARLAND, Appellant, v. William Clark REYNOLDS, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 620

513 S.W.2d 620

Jeanne McFARLAND, Appellant, v. William Clark REYNOLDS, Appellee.

No. 882.

Court of Civil Appeals of Texas,

Corpus Christi.

Aug. 30, 1974.

Robert L. Galligan, Rankin, Kern & Martinez, McAllen, for appellant.

James S. Bates, Bates & Hendrix, Edinburg, for appellee.

OPINION

BISSETT, Justice.

This is a suit in the nature of a bill of review to set aside the property disposition made in a prior divorce decree, to obtain an equitable division of community property, and to modify the child custody provisions of the decree. Alternatively, plaintiff seeks the present custody of the minor children. The present suit was instituted by Jeanne Reynolds against her former husband, William Clark Reynolds. Both parties had remarried at the time plaintiff's 'Second Amended Original Bill of Review' was filed. Jeanne Reynolds is now Jeanne McFarland. She does not contest that part of the judgment which divorced her from appellee.

William Clark Reynolds filed a motion denominated 'Motion to Strike Plaintiff's Second Amended Original Bill of Review', wherein he prayed that the pleading be stricken in its entirety. The trial court sustained the motion, and when Jeanne McFarland declined to amend, dismissed the action 'with prejudice'.

The record in this appeal consists of the original divorce decree, appellant's 'Second Amended Original Bill of Review', hereinafter referred to as 'pleading', appellee's motion to strike, and the judgment of dismissal. Appellee's motion is necessarily directed solely to the adequacy of appellant's pleading as a matter of law. The only question here presented is whether or not appellant has Alleged sufficient cause for a bill of review.

The rules applicable to a bill of review were laid down by our Supreme Court in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). They were restated and thoroughly discussed in Hanks v. Rosser, 378 S.W.2d 31 (Tex.Sup.1964); in Gracey v. West, 422 S.W.2d 913 (Tex.Sup.1968), and in French v. Brown, 424 S.W.2d 893 (Tex.Sup.1967). Three matters must be alleged and proved in order for a losing party to successfully set aside a final judgment by a bill of review; they are: 1) a meritorious claim or defense, 2) which petitioner was prevented from making in the prior proceeding by fraud, accident or wrongful conduct of the opposite party, 3) unmixed with any fault or negligence on the part of petitioner. Since the proceedings in the trial court never reached the proof stage, we look only to appellant's pleading to see if the three elements or requisites are alleged. If so, then the pleading is sufficient as a matter of law.

In the case at bar, an agreed judgment was rendered in the original divorce action between the parties in the 139th District Court of Hidalgo County, Texas on July 14, 1970, whereby appellant was divorced from appellee, custody of the parties' three minor children was given to appellee, and all of the community property was awarded to appellee on condition that he pay all community debts . The judgment was not appealed and became final. Thereafter, appellant timely filed a bill of review.

Appellant's pleading consists of two counts. The allegations for a bill of review are found in Count I. Appellant, in Count I, alleged that appellee secured her consent to the entry of the judgment through fraud; that prior to July 14, 1970, the parties had discussed a reconciliation and appellant had agreed to dismiss the then pending divorce suit, but on that date (July 14, 1970), appellee told plaintiff the only way a reconciliation could be effected would be for her to permit a judgment to be entered that would grant her the divorce, give appellee custody of the minor children, and award him all of their community property; that if she would agree thereto, 'it would be the same as they had agreed upon before', that she would not have to move from their home, that he would remarry her 'within two (2) weeks, or a month at the latest'; that as a result of their remarriage she would continue to own the same interest in their community property as she owned prior to the divorce; and that she did not have any interest in the community property then owned by them because the debts exceeded the assets.

Appellant further alleged that when she asked the reason why a reconciliation could only be had on the terms dictated by appellee, that appellee told her he had been advised that unless he effected their reconciliation in this manner that the cause of action he had pending against a third party for alienation of appellant's affections 'would be untenable and he would have no chance for recovery'. Appellant then alleged that she 'agreed to said reconciliation in accordance with defendant's demands and conditions', and that she relied upon appellee's representations. She also alleged that but for those representations she would not have made the agreement with appellee and would not have consented to the entry of the judgment; and, that the judgment was not entered through any fault or negligence on her part.

Appellant's pleading is verified; appellee's motion to strike is not. Appellee particularly alleged in his motion that the pleading 'is insufficient as a matter of law and does not allege actionable fraud or injury upon which recovery may be based', and 'said false and fraudulent representations alleged by the plaintiff . . . are further immaterial to the cause at hand'. He also alleged that appellant, by her pleading, 'admitted' that she had accepted a benefit under the divorce decree, and by her acceptance of the benefits of the judgment of the court, of remarriage, and of the disposition of their community property by allowing appellee to assume all community debts, is estopped from attacking the judgment; and, that appellant consented, procured, induced and agreed to the entry of the original divorce decree.

The existence of fraud is a question of fact for the trier of facts. Drinkard v. Ingram, 21 Tex. 650 (1858); Graham v. Roder, 5 Tex. 141 (1849); Young v. Texas Employers' Insurance Association, 488 S.W.2d 551 (Tex.Civ.App.--Waco 1972, n.w.h.); 26 Tex.Jur.2d., Fraud and Deceit, § 140. A property settlement agreement reached by and between the parties in a divorce action is subject to being set aside because of extrinsic fraud. McMurry v. McMurry, 67 Tex. 665, 4 S.W. 357 (1887); Swearingen v. Swearingen, 193 S.W. 442 (Tex.Civ.App.--San Antonio 1917, writ ref'd); Ralls v. Ralls, 256 S.W . 688, 695 (Tex.Civ.App.--Amarillo 1923, writ dism'd).

In order to set aside an agreed judgment, or any part thereof, because of fraud, it is essential that the fraud be extrinsic and not intrinsic. O'Meara v. O'Meara, 181 S.W.2d 891 (Tex.Civ.App.--San Antonio 1944, writ ref'd); 34 Tex.Jur.2d, Judgments, § 205. Extrinsic fraud exists where a litigant 'has been misled by his adversary by fraud or deception'. Alexander v. Hagedorn, supra.

There is nothing in the record before us which substantiates appellee's allegations that appellant 'procured' or 'induced' the entry of the agreed judgment, or that appellant alone testified at the trial on the merits of the divorce action, as stated by appellee in his brief. We do not find that appellant 'admitted' in her pleading that she has accepted a benefit under the judgment.

In addition to the foregoing allegations contained in appellant's pleading, appellant also alleged, in effect, that appellee concealed from her the true facts relating to the community property, and misrepresented to her the real value of the community estate and the amount of the community debts. Those allegations do not relate to issues determined by the trial court in the previous trial but relate to false representations made prior to the trial with the result that the actual community property was not before the court for rendition of a judgment which would partition the same between the parties in an equitable manner. Novy v. Novy, 231 S.W.2d 780 (Tex.Civ.App.--Austin 1950, writ dism'd). Appellee's representations as to the nature and extent of the community estate, if false, must be treated as a species of extrinsic fraud. Wright v . Wright, 7 Tex. 526 (1852); Brownson v. New, 259 S.W.2d 277 (Tex.Civ.App.--San Antonio 1953, writ dism'd).

A person who remarries after having been divorced, may seek a review of other provisions contained in the decree of divorce, even though that person would be precluded from seeking a review of that portion of the decree which dissolved the marriage. Alderson v. Alderson, 281 N.E.2d 82 (Ind.Sup. 1972); Olson v. Olson, 180 N.W.2d 427 (Iowa Sup.1970); Brackin v. Brackin, 182 So.2d 1 (Fla.Sup.1966); Forest v. Forest, 9 Ill.App.3d 111, 291 N.E.2d 880 (1973). In this case, the acceptance by appellant of the community property disposition made in the judgment that terminated the marriage pursuant to an agreement with appellee does not estop her, as a matter of law, from a review of that disposition if she was led into the agreement through fraud and misrepresentation on the part of appellee and through no fault or negligence on her part. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950); Dudley v. Lawler 468 S.W.2d 160 (Tex.Civ.App.--Waco 1971, n.w.h.); Eldridge v. Eldridge, 259 S.W. 209 (Tex.Civ.App.--San Antonio 1924, n.w.h.).

The judgment of dismissal cannot be affirmed on the ground that the record conclusively shows that appellant is estopped from contesting the prior judgment. The ground of estoppel by the acceptance of benefits is a matter of affirmative defense to appellant's action and cannot be urged to test the sufficiency of appellant's pleading.

Appellant particularly alleged that an appeal from the judgment in the divorce proceeding because of appellee's fraud was not available to her for the reason that she did not discover the fraud until after the time for perfecting such an appeal had elapsed. The reasons advanced in appellant's petition for a bill of review are...